Regina v Ngo

Crimes Act 1900 LEGISLATION CITED : Justices Act 1902 Crimes Sentencing Procedure Act (1999) Regina v Thomson; Regina v Houlton (2000) 49 NSWLR 381 CASES CITED: Regina v Gallagher (1991) 23 NSWLR 220 Regina v Gordon (1994) 71 A Crim R 469 DECISION : Leave to appeal granted. Appeal against sentence dismissed

JAMES J WHEALY J

1 WHEALY J: This is an application for leave to appeal against a sentence by her Honour District Court Judge Karpin on 30 June 2000. The applicant had entered a plea of guilty to one count of armed robbery with wounding pursuant to s 98 of the Crimes Act and one count of common assault pursuant to s 61 of the Crimes Act. The first offence carries a maximum penalty of imprisonment of 25 years, the second carries a maximum penalty of imprisonment of two years. 2 The applicant was committed to the District Court for sentence pursuant to s 51 A of the Justices Act. On the first count her Honour sentenced the applicant to a period of three years imprisonment with a non parole period of 18 months. On the second count a fixed terms of nine months imprisonment was imposed. 3 The ground of appeal is that the sentence was manifestly excessive. There are, in the written submissions, essentially two bases in support of the appeal. First, that her Honour failed to give sufficient weight to the assistance given by the authorities. Secondly, her Honour failed to give sufficient weight to the applicant's plea of guilty in the early stages within the guidelines of Regina v Thomson; R v Houlten (2000) 49 NSWLR 381. I note that the sentence was imposed and the reasons for sentence were given some little time before the guideline judgment itself. 4 As an alternative, it was submitted in the written submissions that her Honour failed to give sufficient weight to each of these two matters as combined issues. 5 In oral submissions, parity issues were raised for the first time. The nature of this submission is that, as the applicant was only 18 and a half when the offences were committed; and as he had had, admittedly, a difficult and unhappy childhood in many respects, the applicant should have been sentenced, by comparison with the way the co-offender Ho was sentenced, as if he were a juvenile. The co-offender Mr Tony Ho was at the time 22 years of age. The disparity, it is said, resides in the significant difference between the two in terms of years. 6 The facts of the matter were these. A Mr Chen, a sales consultant had been to dinner with two friends at a Chinese restaurant in Auburn on the evening of 14 June 1999. Later in the evening, after he had dropped one of his friends off at her home in Auburn, he remained in the area in his car talking to his other friend Jessica Chang. About 1 am on 15 June he and Miss Chang were driving in the nearby suburb of Berala. Mr Chen saw the applicant on the side of the road, waving him down. Mr Chen stopped and the applicant asked him for help. That request was made in Cantonese, a language familiar to Mr Chen. Both Mr Chen and Miss Chang left the car whereupon the applicant pushed a metal bar into Mr Chen's stomach. Mr Chen grabbed what he believed to be the barrel of the gun. He was then struck from behind on the head and his wallet was taken from him by the co-offender Tony Ho. 7 Mr Chen fell to the ground whereupon the applicant and Ho further assaulted him whilst taking money from his pocket. At the same time Miss Chang ran screaming from the scene. She was chased by the applicant who pushed her to the ground. She managed to escape and she ran to nearby units where she remained. Both were taken to hospital for treatment. 8 About three hours later, patrolling police officers saw the applicant and co-offender sitting in a car with another person. A search of the vehicle was carried out. Mr Chang's wallet was found together with a jacket with blood stains on it. Neither the applicant nor Mr Ho were able to offer an explanation for the money in the wallet found in the car nor the bloodstained jacket. Both men were arrested. 9 At the police station the applicant entered into an electronically recorded interview with police in which he implicated Ho as an accomplice to robbery. He denied taking Miss Chang's handbag from her although, when shown the bloodstained jacket from the car, the applicant agreed that it was but denied that he or Ho was wearing it at the time of the robbery. However, the jacket was positively identified as being worn by one of the offenders at the time of the offence. The applicant was cooperative with the police and sought to help in the recovery of the metal bar which had been used in the robbery. It was not, however, located. 10 As I have said, the applicant first pleaded guilty at Burwood Local Court on 30 June 1999. In January 2000 the applicant gave an undertaking to give evidence against Tony Ho at his forthcoming trial. As events transpired, Ho pleaded guilty before the trial commenced and it became unnecessary for the applicant to fulfil his undertaking. Her Honour noted early in the reasons for sentence the fact that an undertaking had been proffered by the applicant and stated that she would take it into account in relation to the sentence to be imposed on him. 11 Her Honour then examined the objective seriousness of the offence and, at some length, set out the generally favourable subjective circumstances of the applicant. Other than to refer to the latter material in relation to the newly raised issue on parity, there is no need for me to repeat all this material at this stage, since it is properly conceded on behalf of the applicant that the head sentence of four years was within the range and the subjective factors were adequately examined in that regard. 12 As, however, the parity issue has been raised, it is necessary to briefly refer to the fact that the applicant was 18 and a half when the offences were committed; there were difficulties in the early years of his life. At the age of 12 his father was killed in a motor vehicle accident. At the age of 14 his mother was diagnosed with cancer. Tragically, she died six months later after palliative care. The applicant was not yet 15 when his mother died. He was brought up by his two brothers, who acted in place of his parents. 13 In relation to the objective seriousness of the offence, I should perhaps add that I agree with her Honour that these offences were very unpleasant. Mr Chen left his vehicle to help a person, apparently in need on the roadside. He was confronted and assaulted with a metal object which he thought was a gun. He was struck heavily from behind on the head requiring hospitalisation afterwards. He had his wallet taken from him and he was further assaulted by the two assailants when he fell to the ground, for no apparent purpose at all. 14 Miss Chang, who had attempted to run from the scene, was chased and pushed to the ground. She also attended hospital for treatment after the attack. I agree with her Honour that it would have been a terrifying experience for both of these people. 15 It seems the original idea of committing the robbery came from the applicant who was in severe financial difficulties. He was in specific financial difficulties in relation to his brothers, as they had entrusted to him money for a certain purpose and he had misused this for purposes of gambling. All the applicant's financial difficulties were as a consequence of his very severe gambling addiction. It seems, however, the applicant had taken steps to overcome this addiction and has made progress in relation to his rehabilitation. 16 I turn now to the submissions which have been made as to the question of assistance given to the authorities. S 23(1) of the Crimes Sentencing Procedure Act (1999) provides:- "A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relation to, the offence concerned or any other offence."

17 As to the second matter, namely, that her Honour failed to give sufficient weight to the plea being pleaded at the earliest possible time, it is necessary to note s 22 of the Crimes Sentencing Procedure Act (1999). Section 22 requires the court to take into account the fact of and the timing in relation to a plea of guilty. 18 In the guideline decision of this Court in (Regina v Thomson; R v Houlton at p 419 para 160), Spigelman CJ noted:- "Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last-mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, for example, assistance to the authorities, a single combined quantification will often be appropriate."

19 His Honour continued in the next paragraph:- "The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge. In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount."

20 As I have said earlier the guideline decision was published after her Honour's reasons for sentence. However, her Honour at p 7 of the reasons for sentence said this:- "The applicant's prospect for rehabilitation are excellent and are well under way. He has, however, committed a serious crime of violence in order to obtain funds to cover his gambling addiction. That serious crime and the less serious assault inevitably call for a term of imprisonment. There are, however, a number of matters to be taken into account in determining that term - his early admissions and plea of guilty, which are sound evidence of contrition, and which attract a reduction in sentence, his offer to give evidence against Ho, which requires a discrete reduction in sentence to be passed upon him, his youth and sound prospect of rehabilitation. There are matters which justify a variation in the statutory ratio of sentence, in particular, the desirability of assisting discontinuing rehabilitation."

21 Her Honour continued in the next paragraph with a matter which is relevant to the issue of parity that has been raised. She said:- "There is also, however, the issue of parity, as there is no persuasive evidence that one of these prisoners is more culpable of this crime than the other. Ngo has a need for continuing assistance in relation to his gambling addiction."

22 And at p 11 of the reasons for sentence, in passing sentence her Honour said:- "In respect of the sentence to be passed on Michael Ngo there will be a reduction of twelve months in the overall sentence, being a discrete deduction allowed for the offer to give evidence against Ho."

23 Thus it will be seen from the passages to which I have referred that the sentencing judge allowed a discrete reduction of twelve months related to the offer to give evidence against Mr Tony Ho. In my opinion she correctly addressed this issue, as she was required to do, and I am not persuaded that insufficient weight was given to this matter. In my opinion the reduction which was given was within a proper range. 24 In relation to the early plea of guilty, her Honour expressly recognised the early plea of guilty which had been made and stated that she took it into account in determining the sentence. 25 Generally, it must be said, that allowances for assistance to the authorities and recognition of the contrition involved in an early plea and its utilitarian value are matters which often may overlap. They are not discrete and separate matters in all respects. It will be sometimes appropriate, as I believe it was here, to allow the composite quantification of the kind noted by Spigelman CJ in the guideline judgment and passages to which I have referred. 26 In relation to the assistance given to authorities, this was also recognised at common law before the precursor to s 23 of the Crimes Sentencing Procedure Act (1999) was introduced in 1992. In Regina v Gallagher (1991) 23 NSWLR 220. At 227 G Gleeson CJ said this:- "However, those issues, whilst important, are not of immediate relevance. Other considerations that enter into the matter include remorse or contrition which may be demonstrated in a given case by cooperation of with the authorities, and the more difficult time which an informer is likely to have during the period of incarceration as a result of having cooperated. Those last-mentioned matters may, depending upon the circumstances, be very difficult to separate from other considerations which might arise quite apart from the matter of assistance to the authorities. In this case, for example, the appellant was entitled to receive, and received, credit for pleading guilty, and for the contrition which that plea of guilty reflected. It was also said to be to his credit that he had good prospects of rehabilitation. It seems hardly likely that these were subjective matters which were entirely separate from the matter of his assistance to the authorities. It must often be the case that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to cooperate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate one or more of those considerations will not only be artificial and contrived, but will also be illogical."

27 Those principles are applicable, in my opinion, to the present case. This was a serious armed robbery. It was necessary that the sentence imposed upon the applicant not be unreasonably disproportionate to the offence. The sentence, including the non parole period, met that criterion. 28 In relation to the parity issue, it must be said that her Honour gave every consideration which could possibly be given to the appellant's subjective circumstances and to his prospect of rehabilitation. These were recognised especially in the length of the non parole period set. 29 As to his youth, it is my view that the comparative youth of the applicant is a matter which is not unimportant in the consideration of his subjective circumstances. The applicant however, is to be viewed as a young adult, it being not unimportant to note that his addiction to gambling, and his willingness to take part in gambling, leading to his financial difficulties are not inconsistent with the level of maturity of a young adult. Given, however, the nature of the crime, general deterrence and retribution remained significant sentencing considerations. In Regina v Gordon (1994) 71A Crim R 469, Hunt J said:- "General deterrence remains of primary importance and where a youth conducts himself in the way an adult might conduct himself and commits a crime of considerable gravity, the protective function of the criminal courts would cease to operate unless general deterrence and retribution remained significant considerations in sentencing that youth."

30 His Honour was dealing with a crime of greater gravity than is involved in each of the two matters here. In general terms, however, I am of the opinion that the principle is applicable to the present matter. 31 It must also be said her Honour found, as she was entitled to do, that it appears to have been the applicant's idea to commit this crime and he persuaded Mr Ho to join him in it. Generally, it seems to me, to be appropriate that the appellant and Mr Ho, though they differed in age, were appropriately dealt with as equal co-offenders, and that is precisely what her Honour did. She did, however, make specific allowance in favour of the applicant in relation to his special subjective circumstances which were reflected in the non parole period. Secondly, she made specific discrete allowances for his assistance to the authorities and took into account his early plea. 32 In all the circumstances I do not think that the applicant can be said to have a sense of legitimate grievance in relation to the sentence imposed on him, nor is it manifestly excessive. I propose that the appeal be dismissed. 33 JAMES J: I agree with the judgment of Whealy J. 34 The orders of the Court are that leave to appeal should be granted but that the appeal against sentence should be dismissed.

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